Under the Equality Act 2010 employees can bring claims of direct discrimination by association i.e. they can argue that they have been less favourably treated because of their association with someone else who has a protected characteristic. So for example, if an employee is passed over for promotion because of their caring responsibilities for a disabled child, they could argue direct discrimination by association. It was thought however, that indirect discrimination claims could not be brought on the same basis and that to succeed with an indirect claim, the employee had to be disabled themselves. An ET has now ruled that a non-disabled employee could bring a claim of indirect discrimination due to her association with her disabled mother. This case has particular implications for employers who may be taking decisions based on an employee's inability to return to the workplace post-pandemic due to their caring responsibilities.
In Follows v Nationwide Building Society ET/2201937/18 Mrs Follows was employed by Nationwide as a Senior Lending Manager (SLM) on a homeworker contract. She primarily worked from home because she was the carer for her disabled mother. Although on a homeworker contract, she attended the office two to three days a week. Nationwide sought to reduce the number of SLMs and required them all to be office-based because of a greater need for staff supervision by SLMs. During the consultation process there were more volunteers for redundancy than required and Nationwide approached some and asked them to stay. Mrs Follows did not volunteer and was subsequently made redundant. Another SLM who worked from home, Mr Gregory, was also dismissed.
Mrs Follows brought several claims, which included unfair dismissal and direct and indirect associative discrimination on the grounds of disability. The ET upheld the claims of unfair dismissal and indirect associative discrimination on the grounds of Mrs Follows' mother's disability. The claim of direct disability discrimination by association failed because the ET found that the reason for the less favourable treatment was not Mrs Follows' caring responsibilities but because of her homeworker status and that Mr Gregory was treated the same. However, the ET upheld the claim of indirect disability discrimination by association.
The tribunal accepted that carers for disabled people are less likely to be office-based than non-carers, due to their caring responsibilities. The requirement to no longer work at home put Mrs Follows at a substantial disadvantage because of her association with her mother's disability as her principal carer. Nationwide was not able to justify this requirement particularly as Mrs Follows had shown that she had good feedback from junior colleagues regarding her level of supervision and was able to attend the office 2-3 days a week. There was therefore no evidence that selecting Mrs Follows for redundancy and dismissing her was a reasonably necessary way of achieving its aim of a high standard of supervision.
Although only a decision of the ET and therefore not binding on other Tribunals, this case is a warning to employers who may well be dealing with situations where parents and other carers are finding it difficult to return to the workplace after the pandemic due to their caring responsibilities. If employees can argue that the requirement to work from a particular place places them at a disadvantage due to a family member's disability, then the burden will be on the employer to justify this requirement. If the employee has been able to carry out their role successfully from home during the pandemic, then it may be difficult for an employer to justify a requirement for the person to return to a particular workplace.
